ACLU v. BOP, No. 20-2320, 2022 WL 1262112 (D.D.C. Apr. 28, 2022) (Walton, J.)

ACLU v. BOP, No. 20-2320, 2022 WL 1262112 (D.D.C. Apr. 28, 2022) (Walton, J.)

Re:  Request for "'release of two categories of records: (1) COVID-19 data at [Federal Correctional Complex ('FCC')] Terre Haute, where federal prisoners are detained and executed; and (2) cost and staffing data related to federal executions.'" 

Disposition:  Denying plaintiffs' motion to strike

• Litigation Considerations, Summary Judgment:  "The plaintiffs argue that striking Part IV of [defendant's] Declaration is warranted because portions of the declaration 'are deficient under the Federal Rules of Civil Procedure[.]'"  "According to the plaintiffs, those portions: (1) 'are not based upon personal knowledge,' (2) 'exceed the range of topics to which [the declarant] is competent to testify,' and (3) 'rely on inadmissible hearsay.'"  "In the context of a FOIA case, 'it is well settled that "FOIA declarants may include statements in their declarations based on information they have obtained in the course of their official duties."'"  "However, 'an agency declarant need not have been personally involved in the events reflected in, or preparation of, the records at issue but merely have personally been advised about or reviewed those records to meet the Rule 56 standard.'"  " [T]he Court concludes that [the declarant] possessed the requisite personal knowledge to support the assertions in Part IV of her declaration."  "The[] categories [provided by the declarant] fall well within the realm of 'information [she] ha[s] obtained in the course of [her] official duties[,]' . . . as they constitute '[the declarant's] personal knowledge' obtained through direct participation in the relevant conversations . . . 'information provided to [her] by other agency employees[,]' . . . '[her] own review of agency records[,]' . . . or a combination thereof."  "Next, the Court addresses the plaintiffs' argument challenging [the declarant's] competency."  "In the FOIA context, the standards to establish the requirements of personal knowledge and competency overlap significantly, such that they are often analyzed in tandem."  "Ultimately, the Court concludes that [the declarant] is competent to testify for the same reasons that it finds she possessed the level of personal knowledge required by Rule 56(c)(4)."  "Next, the Court addresses the plaintiffs' hearsay argument."  "[T]he Court concludes that, because [the declarant's] statements are derived either from first-hand knowledge, participation in conversations . . . with third-party contractors, or consultation with other agency officials, they are not subject to a hearsay challenge and are admissible in the FOIA context."  "Finally, the Court turns to the plaintiffs' allegation of bad faith, as asserted in their reply."  "Here, neither of the plaintiffs' assertions—namely, inconsistencies between the two declarations or evidence of wrongdoing on the part of another agency official in another case—warrants a finding of bad faith on the part of the defendant, because the presumption of administrative good faith will not be defeated by the presence of 'inconsistency in [a declarant's] declaration.'"